# C_2019255EN.01002801.xml

| 29.7.2019 | EN | Official Journal of the European Union | C 255/28 |
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29.7.2019

EN

Official Journal of the European Union

C 255/28

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Appeal brought on 6 June 2019 by Pometon SpA against the judgment delivered by the General Court (Third Chamber, Extended Composition) on 28 March 2019 in Case T-433/16, Pometon v Commission

(Case C-440/19 P)

(2019/C 255/37)

Language of the case: Italian

Parties

Appellant: Pometon SpA (represented by: E. Fabrizi, V. Veneziano and A. Molinaro, lawyers)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

principally, set aside the judgment under appeal in so far as it rejected the pleas in law seeking annulment of the contested decision in its entirety and, consequently, annul the contested decision;

in the alternative:

| — | set aside the judgment under appeal in so far as the General Court unfairly found that Pometon’s alleged participation in the alleged cartel had not been interrupted during the period from 18 November 2005 to 20 March 2007 and, accordingly, in the exercise of its unlimited jurisdiction, reduce the financial penalty imposed on Pometon; |
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set aside the judgment under appeal in so far as the General Court unfairly found that Pometon’s alleged participation in the alleged cartel had not been interrupted during the period from 18 November 2005 to 20 March 2007 and, accordingly, in the exercise of its unlimited jurisdiction, reduce the financial penalty imposed on Pometon;

| — | in any event, in the exercise of its unlimited jurisdiction, reduce the financial penalty imposed on Pometon on account of the General Court having failed to observe the principle of equal treatment; |
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in any event, in the exercise of its unlimited jurisdiction, reduce the financial penalty imposed on Pometon on account of the General Court having failed to observe the principle of equal treatment;

in any event, order the Commission to pay the appellant’s legal fees and any other costs and charges connected with the present proceedings and the proceedings before the General Court.

Grounds of appeal and main arguments

In support of the appeal, the appellant relies on four grounds of appeal.

| 1. | First ground of appeal: The General Court misapplied fundamental principles of EU law, namely the principle of the presumption of innocence and the principle of a fair trial, by failing to criticise the Commission’s failure to observe those fundamental principles. |
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1.

First ground of appeal: The General Court misapplied fundamental principles of EU law, namely the principle of the presumption of innocence and the principle of a fair trial, by failing to criticise the Commission’s failure to observe those fundamental principles.

| 2. | Second ground of appeal: The General Court failed to observe the principles governing the burden of proof and failed to apply the principle of the presumption of innocence when it confirmed the Commission’s findings that Pometon had taken part in the alleged cartel. It also gave contradictory and/or insufficient reasoning in that regard.
  The General Court found the appellant culpable on the basis of assumptions and ‘likelihoods’, indicating in quite generic terms the documents on which those assumptions were based. |
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2.

Second ground of appeal: The General Court failed to observe the principles governing the burden of proof and failed to apply the principle of the presumption of innocence when it confirmed the Commission’s findings that Pometon had taken part in the alleged cartel. It also gave contradictory and/or insufficient reasoning in that regard.

The General Court found the appellant culpable on the basis of assumptions and ‘likelihoods’, indicating in quite generic terms the documents on which those assumptions were based.

| 3. | Third ground of appeal: The General Court misapplied the principles governing the burden of proof and failed to apply the principle of the presumption of innocence when it held that the Commission had demonstrated to the requisite legal standard that Pometon had not interrupted its participation in the infringement during the (approximately) 16-month period from 18 November 2005 to 20 March 2007, even though, for that period, it did not have evidence of collusive contact. It also gave contradictory and/or insufficient reasoning in that regard. |
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3.

Third ground of appeal: The General Court misapplied the principles governing the burden of proof and failed to apply the principle of the presumption of innocence when it held that the Commission had demonstrated to the requisite legal standard that Pometon had not interrupted its participation in the infringement during the (approximately) 16-month period from 18 November 2005 to 20 March 2007, even though, for that period, it did not have evidence of collusive contact. It also gave contradictory and/or insufficient reasoning in that regard.

| 4. | Fourth ground of appeal: The General Court failed to observe the principle of equal treatment when setting the amount of the fine imposed on Pometon and provided contradictory and/or insufficient reasoning in that regard. In particular, the General Court recalculated the amount of the penalty imposed on the appellant by identifying a percentage reduction of the basic amount of the fine that was not consistent with the percentage reductions granted by the Commission to the settling parties, and did not provide objective justification for such treatment. |
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4.

Fourth ground of appeal: The General Court failed to observe the principle of equal treatment when setting the amount of the fine imposed on Pometon and provided contradictory and/or insufficient reasoning in that regard. In particular, the General Court recalculated the amount of the penalty imposed on the appellant by identifying a percentage reduction of the basic amount of the fine that was not consistent with the percentage reductions granted by the Commission to the settling parties, and did not provide objective justification for such treatment.

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